Lawyers: The State Halts Developments for Decades, But Is It Legal?
The state has reserved extensive land plots in the public interest for various roads, pipeline corridors and other infrastructure objects, as well as the facilities necessary for their use. For many landowners, such existing plans have effectively frozen or even prohibited the development of their properties for an indefinite period.
Whether such a situation is legally justified from the landowners' perspective only in the short term or also in the longer term is explained by Sandra Kaas and Villy Lopman, co-heads of the environmental law, land use and planning department at the law firm RASK.
A plan envisages an object together with all the facilities necessary for its construction and use. This means that, for example, state road plans include, in addition to the main road, a wide variety of additional traffic facilities: access roads, collector roads, intersections, on- and off-ramps, bridges and viaducts, pedestrian and bicycle paths or ecoducts and tunnels.
Although the exact location, technical parameters and resulting restrictions of these facilities are specified in later construction projects, the land areas necessary for the facilities are already reserved in the plans. The principles of land use and construction conditions in the corridor and in the area of the road and its protection zone are limited. In the corridor and its vicinity, only activities are permitted that do not preclude the construction of the road and the traffic facilities necessary for its operation.
With the consent of the Transport Administration, it is in principle possible to plan, design and construct on a property located in the corridor and in the area of the road and its protection zone. In practice, however, this clause contained in the plans has proven to be rather empty, as such consent is simply not given to landowners. Often, consent is refused by referring to the validity of the plan solution and explaining that nothing can be permitted until the state decides whether and when the project will be implemented at all, either fully or partially.
The development of properties is thus effectively frozen or prohibited for decades, and landowners are left in a waiting position without hope and information. From the landowners' perspective, the problem lies primarily in the fact that it is unknown whether and when the state will make any decision or what the state's actual plans and schedule are. The most problematic aspect is precisely the fact that there is no time frame whatsoever for how long such property restrictions can last. In essence, land plots are "reserved" by the state for an indefinite period.
Reserving land areas for contingency without proven need is unlawful
Court practice shows a dispute in which one of the central questions was the extent to which it is lawful for the state to freeze land areas for its projects and effectively prohibit their use. A landowner requested the initiation of a detailed plan on his land to determine building rights for the construction of commercial, catering and storage buildings.
The land plot in question was partially located in the protection zone of a main road and in the road and road protection zone of a road planned by the Pärnu County Plan thematic plan (Via Baltica). According to the thematic plan, planning, design and construction of new buildings and structures, establishment of plantations and change of land use purpose were prohibited in the road and road protection zone until the road was fully completed.
The Transport Administration stated that it would not issue starting conditions for the detailed plan or approve the detailed plan because the thematic plan's preliminary road project had not yet been completed. Additionally, reference was made to plans to initiate a special state plan, which would envisage the construction of a 2+2 road, which could have meant a wider corridor in the area in question.
The landowner did not agree with the termination of the detailed plan process and filed a complaint against the Transport Administration's refusal. The court then annulled the Transport Administration's refusal and ordered the administration to reconsider the provision of starting conditions necessary for the detailed plan process. The court clarified that the state does not have the right to "just in case" reserve an entire land plot belonging to a person in a situation where there is no clear and actual need to use the entire property for another purpose. Questions about whether and to what extent construction might be possible must be assessed during the detailed plan process. The state cannot preemptively and completely eliminate this possibility. Such extensive property restrictions are not lawful.
In practice, problems have also arisen in general plan processes from the fact that landowners are not permitted to request the designation of desired purposes for their land plots on the grounds that the properties are partially located in the state's planned object corridor. In fact, the designation of land use purposes derived from the landowner's interests on land within the corridor need not be prohibited at all.
To assess this, it is necessary to analyze the materials of the specific plan and the state's actual intentions. It is important to clarify whether the state has "reserved" the entire land plot or only a certain part of it for the construction of a specific object. If the reservation covers only part of the property, it is not lawful to refuse to consider the determination of new land use purposes in the general plan process for the part that is not covered by the state's so-called reservation.
The state must begin reviewing its project planning solutions
Property restrictions resulting from planning solutions are undoubtedly necessary so that construction and planning activities take into account the objects planned by the state. However, landowners should not have to endure restrictions in a situation where the traffic facilities envisaged by the planning for their land plots are not actually constructed or if the state has not been able to decide within more than ten years whether to implement the solution at all.
If a planning solution has not even been designed and there is no interest among authorities in its implementation, such property restrictions are not appropriate or proportionate. Clearly, they also do not help achieve the purpose of the restrictions. In such cases, the state must actively take steps to eliminate the corresponding property restrictions. Unfortunately, this is not done in practice today.
It is important to know that many so-called line objects, such as state roads, were once planned with county plans, which under current law have the status of state special plans. These special plans are not subject to the usual five-year validity period, so they remain in force until declared null and void. Furthermore, the law does not require the state to regularly review such special plans, unlike national, county and general plans. Local authorities also lack the legal opportunity to release land "frozen" by the state through a general plan for landowners, as the law does not allow general plans to make proposals for changes to state special plans.
The elimination of the corresponding property restrictions is therefore solely within the competence of the state. Even if the current planning law lacks separate provisions for declaring state special plans null and void, this does not mean that the situation cannot be addressed. A plan is an administrative act, more specifically a general regulation, and it is subject to the norms of the Administrative Procedure Act as a general law. On this basis, the state has the opportunity to declare a perspective-less and outdated planning solution null and void, either entirely or partially, and thereby terminate property restrictions.
Therefore, the continuation of such property restrictions cannot be justified by the lack of procedures for declaring special plans null and void in the planning law. The problem lies not in the absence of legal possibilities, but in the lack of initiative. The state must begin to substantively review its old planning solutions and the property restrictions associated with them. In doing so, the extent to which the landowners' land use has been restricted must be assessed, and whether these restrictions have become disproportionate over time.
